Edit Memo: Right-Wing Pressure on Democratic Senators on Judges: “Do As We Say, Not As We Do”

To: Interested PartiesFrom: Paul Gordon, Senior Legislative Counsel, People For the American WayDate: July 31, 2017Re: Right-Wing Pressure on Democratic Senators on Judges: “Do As We Say, Not As We Do”

With Republicans in control of both the White House and the Senate, far right groups are jumping at the chance to remake our federal courts—and our nation—with ultra-conservative judges hand-picked by the Federalist Society and the Heritage Foundation. While Democrats can no longer effectively filibuster extremist nominees, they still have a powerful procedural tool at their disposal: the longtime Senate tradition of the “blue slip,” in which nominees are not considered in committee without the consent of both home state senators.

But there has been a steady drumbeat from the right accusing Democrats of needlessly delaying approval of qualified nominees from their home states. And, much to the GOP base’s pleasure, Judiciary Committee chairman Chuck Grassley is threatening to proceed with some nominations without the approval of both home state senators, pretending it would not be a dramatic breach of Senate practice and a diminution of congressional independence.

He says these would be “exceptions” to the blue slip rule, but there is no such thing. If the chairman can unilaterally usurp home state senators’ authority at any time—then the protections of the blue slip rule simply do not exist.

But this pressure campaign—accusations of slow-walking combined with threats to make “exceptions” to the blue slip rule—can succeed only if Republicans hide two basic and indisputable truths:

Republican refusals to agree to hearings by submitting blue slips have been respected 100% of the time—regardless of the reason or lack thereof, regardless of the nominee, regardless of the party of the president or chairman, and regardless of the need to fill the vacancy as soon as possible; and

Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees.

1. Democrats Have Always Respected GOP Senators’ Blue Slip Privileges to Prevent Hearings, No Matter How Unjustified, Unjust, and Even Damaging They May Have Been

After Democrats won control of the Senate in the 2006 elections, Chairman Patrick Leahy made his policy clear: The Judiciary Committee would not consider any of George W. Bush’s judicial nominees unless they had the support of both home state senators. This promise both respected senatorial prerogatives while empowering Democrats to prevent consideration of Bush’s extremist nominees from their states.

But when party control of the White House changed in 2008, even though continuation of that policy would have empowered GOP senators to block qualified nominees from their home states, Chairman Leahy … kept the blue slip policy exactly as it was. He never deviated from this policy, nor did Chairman Grassley during the last two years of the Obama presidency.

Senate Republicans took full advantage of their blue-slip rights. Despite good-faith outreach by the White House Counsel’s office, Republican senators frequently refused to approve of anyone other than an extreme conservative, or withheld their approval in the hopes of making a deal over other vacancies, or—frequently—for no publicly provided reason at all. Indeed, many of the vacancies available for President Trump to fill exist because of the blue slip policy. The policy not only blocked hearings for nominees, but frequently discouraged or delayed the Obama White House from even making a nomination.

Sixth Circuit (Kentucky senators)

Trump’s first confirmed lower court nominee—Amul Thapar—filled such a vacancy. In June of 2013, Judge Boyce Martin announced that he would be retiring later in the year, opening up a Kentucky slot on the Sixth Circuit. The White House had extensive consultations with Senators McConnell and Paul, and by March of 2014 was vetting Kentucky Supreme Court Justice Lisabeth Tabor Hughes. But McConnell—then the Senate Minority Leader—apparently had someone else in mind and would not agree.

At this point in time, Democrats still controlled the Senate. President Obama could have nominated Justice Hughes, but the White House knew that without the blue slips, her nomination would never even get a committee hearing. Finally, in March of 2016, after nearly three years of fruitless consultation, President Obama nominated Justice Hughes. The Kentucky senators never signed their blue slips, and her nomination went nowhere.

This was a vacancy that very much needed to be filled. Citing the Sixth Circuit’s increasing caseload, the Judicial Conference of the United States had even asked Congress to create an additional judgeship there. Justice Hughes was highly respected in Kentucky and had earned the American Bar Association’s highest evaluation. The blue slip policy of both Chairmen Leahy and Grassley delayed the nomination for at least two years, then doomed it once it was made. And the Sixth Circuit is hardly unique.

Third Circuit (Pennsylvania senators)

President Trump has nominated Stephanos Bibas to fill a longtime vacancy in the Third Circuit. But this vacancy exists only because Grassley, like Leahy before him, required the assent of both senators to consider a nomination. In January of 2015, Judge Marjorie Rendell announced her intention to take senior status later in the year, and the White House worked hard to identify a nominee who both Senator Bob Casey (D) and Pat Toomey (R) would support. In March of 2016, President Obama nominated Rebecca Haywood, who had Sen. Casey’s support. But Sen. Toomey announced his opposition the next day. Grassley never scheduled a hearing, because Haywood did not have the support of both home state senators.

Seventh Circuit (Indiana senators)

President Trump has nominated Amy Coney Barrett to fill a Seventh Circuit vacancy, but she is not the first nominee for this seat. Back in March of 2014, Judge John Tinder announced his intention to take senior status almost a year in advance. Knowing that any successful nominee would need the support of both home state senators, the Obama Administration worked with Sen. Joe Donnelly (D) and then-Sen. Dan Coats (R) to fill the seat. In January of 2016, nearly two years after Tinder’s announcement, President Obama nominated Myra Selby. She was the first African American and the first woman to serve on the Indiana Supreme Court, and she would have been the first African American from Indiana and the first woman from Indiana ever to serve on the Seventh Circuit. But while Donnelly supported her, Coats did not return his blue slip. Once again, because Grassley required blue slips from both home state senators, he did not schedule a confirmation hearing, and the seat remained vacant for President Trump to fill.

Seventh Circuit (Wisconsin senators)

The oldest circuit court vacancy in the nation is for a Wisconsin seat on the Seventh Circuit, dating back to 2010. With the support of then-Sens. Herb Kohl and Russ Feingold, both Democrats, President Obama had nominated Victoria Nourse. But Feingold was defeated by Republican Ron Johnson in the 2010 election, giving Wisconsin one Democratic and one Republican senator. Although Nourse was renominated, Johnson never submitted his blue slip, and her nomination never went anywhere. Kohl retired in 2012 and was replaced by Tammy Baldwin, keeping that seat Democratic. Johnson and Baldwin worked out a painstakingly long process to identify circuit court nominees they could both approve of. Although the White House could have nominated someone during this time, they knew that anyone without Johnson’s support would fail to be confirmed. As a result, when President Obama finally nominated Donald Schott in January 2016, with the support of both senators, the nominee had a committee hearing and vote. (McConnell blocked his confirmation on the Senate floor, but that’s another story.)

Tenth Circuit (Kansas senators)

If ever a chairman felt tempted to make an “exception” to the rule, it would have been for Steve Six. Nominated in 2011 for the Tenth Circuit with the support of both his Republican home state senators, Six had his hearing before the Judiciary Committee and was scheduled for a committee vote. But then Sens. Pat Roberts and Jerry Moran changed their minds, under pressure from anti-choice organizations. Their justification was flimsy at best, but Leahy respected their prerogatives and (much to his visible frustration) would not hold a vote for Six.

Eleventh Circuit (Alabama senators)

Kevin Newsom is Donald Trump’s nominee to the Eleventh Circuit, and he owes his good fortune to the blue slip rule. When Eleventh Circuit Judge Joel Dubina announced his intention to take senior status in 2013, work began on finding a highly qualified nominee who—because of the blue slip rule—would have the support of both of Alabama’s senators, Jeff Sessions (now Attorney General) and Richard Shelby. By January of 2016, there was still no agreement, and Shelby admitted that he and Sessions were deliberately preventing judicial vacancies in Alabama from being filled while President Obama was in office. So when Obama nominated federal district court judge Abdul K. Kallon the next month, it was no surprise that Sessions and Shelby—who had supported his district court nomination in 2009—withheld their support. Judge Kallon would have been the first African American from Alabama to serve on the Eleventh Circuit.

Despite Shelby’s acknowledgement that his and Sessions’ goal was to obstruct any Obama nominee, Grassley respected the blue slip rule and did not hold a hearing for Judge Kallon. This failed nomination shows that GOP senators have been able to block a nomination no matter what their motive has been.

District Courts

While circuit courts tend to get far more attention, the approval of both home state senators has been required before moving on district court nominations, as well. During the Obama years, home state GOP senators have blocked such nominees in a variety of circumstances and for a variety of reasons. In every case, regardless of the reason and regardless of immense political pressure, no nomination went forward without the approval of both home state senators. Below are just a few examples:

Elissa Cadish of Nevada was strongly supported by then-Majority Leader Harry Reid, but Republican Sen. Dean Heller would not support her. His professed reason was ludicrous. In 2008, before the Supreme Court ruled otherwise, Cadish stated that under then-current law, gun ownership was not a personal right under the Second Amendment. This was hardly an extreme position: The Court had never ruled otherwise until after Cadish’s statement. She expressly stated that as a district court judge, she would interpret and enforce the Supreme Court precedents on the Second Amendment. Nevertheless, Sen. Heller refused to return his blue slip. Despite Cadish’s support from the most powerful person in the Senate, the chairman never gave her a hearing because she lacked the support of both home state senators.

In Florida, Marco Rubio developed a habit of withdrawing his support from people he himself had originally recommended to the White House. With the support of both Rubio and Democrat Bill Nelson, Brian Davis made it to the Senate floor in the 112th Congress but didn’t get a confirmation vote. He was renominated in January of 2013, but this time, only Nelson submitted his blue slip. For the next eight months, Rubio single-handedly blocked the nomination by not submitting his new blue slip. The Judiciary Committee did not advance his nomination until Rubio did so—even though Rubio had recommended Davis and had submitted his blue slip in the previous Congress. Until he had the support of both home state senators, Davis’s nomination remained in limbo for months. But once he had blue slips from both, Davis was considered and confirmed.

In another instance, Nelson and Rubio jointly recommended state judge William Thomas to the White House, but upon nomination, only Nelson submitted his blue slip. Rubio went for months without explaining his opposition, then finally provided reasons that fell apart upon the slightest examination. For instance, Rubio criticized Judge Thomas for not imposing a “tough” enough sentence on a particular convicted murderer, even though Thomas had sentenced him to death. Rubio’s explanations cited so many of what we now call “alternative facts” that one of Judge Thomas’s state court colleagues felt compelled to write the senator a letter setting forth the actual facts. But none of it mattered. Even though Rubio used the flimsiest of reasons to deny a blue slip to someone he himself had recommended, the nomination went nowhere because it lacked the support of both home state senators.

Mary Barzee-Flores was also nominated upon the recommendation by both Nelson and Rubio. Nelson submitted his blue slip but Rubio did not. Because she didn’t have the support of both senators, Barzee-Flores never had a hearing before the Judiciary Committee.

Republican Richard Burr of North Carolina has the distinction of using the blue slip to block two consecutive nominees for a seat that’s been vacant since 2005. In 2009, Burr recommended Jennifer May-Parker for a seat in the Eastern District of North Carolina. President Obama nominated her in 2013, and Democratic senator Kay Hagan gave her support. But Burr, who had recommended her, refused to turn in his blue slip. He did not give a public explanation, but without the support of both of her home state senators, Jennifer May-Parker never had a committee hearing.

President Obama tried again in 2016, this time nominating former North Carolina Supreme Court Justice Patricia Ann Timmons-Goodson. Like May-Parker, Timmons-Goodson would have been the district’s first African American judge. Once again, Sen. Burr did not turn in a blue slip, nor did his newly elected GOP colleague Thom Tillis. Without their support, Justice Timmons-Goodson never had a hearing before the Judiciary Committee.

In Wisconsin, Louis Butler was nominated to the Western District in 2009. The first African American to serve on the Wisconsin Supreme Court, he had been recommended by then-Sens. Feingold and Kohl. But Feingold lost reelection in 2010, and the victor—Republican Ron Johnson—did not submit a blue slip when Butler was renominated. Just like Victoria Nourse for the Seventh Circuit, Butler did not get a committee hearing upon his renomination because he lacked the support of both home state senators.

Throughout the Obama years, under both Patrick Leahy and Chuck Grassley, no judicial nominee had a hearing without the support of both home state senators. Every time a GOP senator declined to submit their blue slip, it was respected, no matter what.

Now we are in the Trump era. Just as Leahy had maintained the policy of requiring blue slips from both senators even when party control of the White House changed, Grassley initially said he would do the same. But since then, under pressure from McConnell, Trump, and the party base, he has suggested he may make “exceptions.”

Whether Grassley will salute his party bosses and change the rules to benefit his party remains to be seen. So far, all the confirmation hearings have been for nominees with the support of both home state senators.

2. Republicans are demanding that Democrats submit blue slips much earlier for Trump nominees than was the case for Obama nominees

While Grassley threatens to eliminate the guarantee of requiring both home state senators to approve of a nomination, right wing activists are putting intense pressure on Democratic senators to submit their blue slips.

By requiring the assent of both home state senators to make a nomination viable, the blue slip has encouraged presidents to consult with home state senators before making their choice. Senators consider this part of their “advice” role in their constitutional “advice and consent” responsibility. An absence of such consultation generally results in the absence of a blue slip and, as a result, a failed nomination. Each senator knows that if the blue slip policy is violated in even one case, it can be violated in any case—including in their own state—posing a direct challenge to the senator’s prerogatives.

There are six Trump circuit nominees from states with at least one Democratic senator (as of July 27). In a sharp departure from the practice of the Obama administration, the Trump White House engaged in no pre-nomination consultation with those senators, with only one exception: North Dakota Senator Heidi Heitkamp. Not coincidentally, having been consulted and having had time to look at the nominee’s record, Heitkamp was the first among these Democratic senators to have returned her blue slip: With GOP Sen. Hoeven’s blue slip also submitted, Eighth Circuit nominee Ralph Erickson has the support of both home state senators and had his committee hearing on July 25. Indiana Sen. Joe Donnelly subsequently returned his blue slip for Seventh Circuit nominee Amy Comey Barrett, who is likely to have a hearing soon.

The remaining Democratic senators who have not yet returned their blue slips were simply informed by the Trump Administration who their state’s nominee would be:

Minnesota (Al Franken and Amy Klobuchar): David Stras, for the Eighth Circuit

There was none of the traditional consultation, the lack of which was cited by numerous Republican senators during the Obama years (whether true or not) as justification for withholding their blue slip.

Trump’s decision to ignore the home state senators also meant that when these nominations were announced, the Democratic senators had had no opportunity to review the nominees’ records in advance. Much of the research and analysis that usually occurs before the nomination instead could not begin until the White House informed them who the nominee would be.

Conservatives are demanding that Democratic senators quickly return blue slips for nominees who they know little about. . For instance, Joan Larsen was nominated on May 8, but it was only late June when the Judicial Crisis Network launched a well-funded ad campaign to pressure Michigan Sens. Stabenow and Peters to submit their blue slips, accusing them of “political games” and “partisan politics” for not already having done so. But to fulfill their constitutional obligations effectively, it should take a lot more than 50 days to acquire all the relevant documents and carefully analyze them.

It is useful to review how long it sometimes took between Obama’s nomination and the GOP senators’ returning their blue slips for someone to fill that vacancy (as measured by the committee hearing date). Some of the more egregious examples below have already been discussed.

Wisconsin (Ron Johnson)

7th Circuit (Victoria Nourse, then Don Schott): 5 years, 4 months

Dist (Louis Butler, then James Peterson): 3 years

Georgia (Saxby Chambliss and Johnny Isakson)

11th Circuit (Jill Pryor): 2 years, 3 months

Dist: (Natasha Silas, then Mark Cohen): 3 years, 3 months

North Dist: (Linda Walker, then Leigh May): 3 years, 3 months

Kansas (Pat Roberts and Terry Moran)

10th Circuit: (Steve Six, then Nancy Moritz): 2 years, 8 months

Nevada (Dean Heller)

District: (Elissa Cadish, then Richard Boulware): 2 years, 1 month

Arizona (John Kyl/Jeff Flake and John McCain)

District: (Rosemary Márquez): 2 years, 7 months

Florida (Marco Rubio)

Dist: (William Thomas, then Robin Rosenberg): 1 year, 6 months

Oklahoma (James Inhofe and Tom Coburn)

Dist: (Arvo Mikkanen, then John Dowdell): 1 year, 3 months

There was no principled-sounding thunder from the right when GOP senators withheld blue slips for Obama’s nominees. That’s an indication that the noise they are making now is wholly unmoored to whatever principles they claim to be protecting. They may be backed by millions of dollars, but there isn’t a penny of integrity to be found

Conclusion

The Federalist Society and the Heritage Foundation, working through Donald Trump, are eagerly nominating judges who will impose their frightening right wing agenda on the entire country. With the GOP-controlled Senate willing to confirm even a disreputable and unqualified nominee like John K. Bush to a lifetime position on a circuit court, the only protection the judicial system and the nation have is the blue slip tradition that no one be confirmed without the support of both home state senators. And especially when the administration excludes Democratic home state senators from any part of the selection process, senators need a long time to adequately vet the nominee.

Republicans are demanding that Democrats essentially rubber-stamp Trump’s judicial selections from their states. In other words, they are holding Democrats to a standard 180 degrees different from the one they held themselves to during the eight years of the Obama presidency.

Similarly, with a party change in the White House, Judiciary Committee Grassley is threatening to eliminate the requirement that a nominee have the support of both home state senators—a requirement he and his fellow Republicans took full advantage of when the judges were being nominated by a Democratic president.

Our country is in danger. The president’s behavior in his first six months show his contempt for the rule of law, without which our democracy cannot survive. The federal courts are the last bulwark of our freedom. They must be protected.

It is no exaggeration to say that the blue-slip policy may determine the fate of the nation.